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Re-imagining governance in SA: Putting the Constitution first




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JANUARY 2023


by Dr Klaus Kotzé

 

Abstract

 

“The Constitution belongs to all of us, not just the ruling party, or one section of South Africa. We all wrote this collectively with our blood, some with their lives, with our tears and with our sweat. We claim it as ours, it enshrines the rights that make us live as South Africans, and we will protect it because it belongs to us” (Ramaphosa, 2012).

 

Introduction

 

South African governance is coming under greater criticism for being poor and ineffective. Instead of expounding on its failures, this paper explores the concept of governance in South Africa and proposes preferential pathways whereby improvement can be found. When governance replaced government at the onset of democratic South Africa, it was a corrective measure responding to the preceding order. Thereby pursuing justice and democracy. Today, a similar, corrective approach is required to intervene and set the country on a better path. Unlike the turn to democracy, today the country is endowed with an instructive Constitution.

 

This paper critically explores the concept and process of governance. It undertakes an exploratory dive into the conceptual meaning of governance in South Africa by looking at how contemporary governance has been shaped by local and global power. It also looks at how the enactment of Constitutional supremacy (rule of law) relates to the preceding system of government, or Parliamentary supremacy (rule by law). It then turns to explore the national loadstar, the Constitution, for perception and guidance as to the ideal processes and practices of governing. Of particular interest is the enactment of Constitutional supremacy through the relationships between the state and citizens. 

 

From Government to Governance

 

To perceive contemporary governance, it is useful to contrast it to the previous order. Today, instead of living under the dictat of politicians or institutions, it is the Constitution that directs all subjects of the state (both officials and citizens) to be guided by and give expression to its principles and values. The Constitution provides foundational insight and direction as to the ways and ends of democracy. It guides the re-imagining of governance by strategically charging both leaders and citizens with the responsibility to forge constructive relationships. This interaction forms the pathway to successful, responsive and resolute democracy. For South African governance to succeed, this study highlights that the roles of and relationship between the state and its citizens are indispensable. While much can be and has been said about the failures of the state administration, the citizenry too has been inadequate in constructively discharging its Constitutional. It is, therefore, not only that a re-imagining of public leadership is needed, but a re-imagination of active citizenry; a republican ethos. 

 

Governance is not a universal concept that is independent of context and history. To discern South African governance, it must be conceptually located. Under the Parliamentary system in place before the non-racial, democratic era, the concept of ‘rule by law’ reigned. It saw to it that the governing authority and its institutions were able to create and execute laws as it saw fit. Rule by law is thus a “method that governments and people in power use to shape the behaviour of people…this usually has the end goal of psychologically or forcefully persuading people to agree with policy decisions they otherwise would not agree with” (Van Norman Law, 2017). The authority and the people are separated by law. Law is applied by power as tools. Power is imposed upon a people. The concept of power is the individual (or institution) wielding such power. 

 

Under the rule of law, the counterpart to rule by law, power is abstracted and resides in philosophical and moral concepts. It is not in institutions, but in concepts, captured in principles such as human dignity and equality, where power lies. These are not ineffable concepts but require people to instil and interpret meaning. The abstraction of power sees to it that it belongs to no-one, yet it prevails over everyone in the state – with the law being circumscribed by the physical borders of the state and its obligations under international law. Laws and ethics are thus captured in a public framework, a loadstar such as the national Constitution. Rule of law is thus the great equaliser. Every citizen is subject to the reign of Constitutional principles. Constitutional supremacy is thus where people pursue and enact the Constitutional ideas and values. These ends (human dignity, equality, etc.) determine and justify the ways they are pursued. 

 

As the subjects of the Constitutional state, the citizens are accordingly not ruled over by a prescriptive government. Instead, they have the primary (and note merely latent) responsibility to be the exponents of the Constitutional precepts. An effective and capable Constitutional state rests first on its citizens internalising and then executing its value-based arrangement. They have a secondary charge to ensure that the state representatives pursue the Constitutional ends.

 

Under the rule of law, the role of the state is administrative and bureaucratic. Foucault’s use of governmentality to describe the change from order by law to administrative proceduralism is useful. The conduct of conduct, according to Foucault indicates how “the exercise of power consists in guiding the possibility of conduct and putting in order the possible outcomes” (Foucault, 1982: 789). Governmentality refers to the guidance of behaviour through productive and positive, rather than restrictive means. A more horizontal system whereby citizens engage each other and the institutions. Where citizens willingly give consent and where individuals participate in the process of governance. As such, “governing is an art involving the imaginative application of intuition, knowledge, and skills to administration and management” (Huff, n.d.).

 

In such a system, it is not the administrative state that governs, but the raft of categories and realm of possibilities that citizens are delineated to and provided. We see that governance, from its Greek origin, ‘kybenan’, which means to steer or guide, is premised upon a clear understanding of ends and the pathways towards these ends.

 

The governing role of global power

 

Global power and norms influence the pursuit of the national order. The timing and context of South Africa’s progression to non-racial democracy have played a determining role in shaping domestic governance. A child of the liberal, democratic era, South Africa has been moulded by global power. Its progression to democracy occurred during what is often referred to as the third wave of democracy. During the 1980’s vast swathes of Latin America and the Asia-Pacific became democratic. After the Soviet Union imploded, Eastern Europe and much of sub-Saharan Africa departed from their Soviet-inspired approaches. With the collapse of a guiding alternative, most of the newly democratic states assumed a normative political framework as influenced by Western liberalism. Whereas the liberation movement led by the African National Congress preferred the redistributive mechanisms inspired by the Soviet Union, the globalised Western dogma persuaded it to follow suit. Together with most of the world, South Africa assumed the guiding norms and practices suggested by the Western-led world. It did so to benefit from the privileges of the international order, but also because of the persuasion of predominant norms. In so doing, democratic South Africa commenced from what can be termed: partial sovereignty. Whereas the Constitution has been central to framing procedural governance, the carrot and stick of global dogma played the central guiding role. Partial sovereignty means that South Africa has led by following the models and processes suggested to it (and the world). According to late Stellenbosch University scholar, Sampie Terreblanche, South Africa acquiesced to the “American economic model” of “anti-statism, deregulation, privatisation, fiscal austerity, market fundamentalism and free trade” (Terreblanche, 2018).    

 

The concern raised here is not about which policy is better (or worse). Instead, it is about policy independence and the lessons and maturities that stem from critically pursuing policy selection; what today is referred to as finding local solutions for local problems. Sovereignty has traditionally been understood as absolute. A state is either sovereign and thus steers its own polity and policy, or it is not. If true sovereignty cannot be partial, then partial sovereignty is not fully sovereign.

 

Democratic South Africa has largely aligned its administration to the global orthodoxy of good governance. According to the World Bank, good governance refers to “predictable, open and enlightened policymaking” (World Bank, 1994). “Good governance refers to a prescribed set of international characteristics which guide public institutions to behave in a manner that advances (Western) human rights and a liberal, democratic rule of law” (Kotze, 2020). Such a detached, global perception is emblematic of the singular, hegemonic approach to governance. The political affairs of a time sans time, the ‘end of history’: a time when all alternatives collapse into the prevailing and superior (western liberal) model.

 

Again, the purpose is not to criticise any indicator of good governance. It would be unjustifiable to criticise transparency, responsibility, accountability and responsiveness, the good governance attributes identified by the United Nations’ Human Rights Council. Instead, the concern is of an imposed set of perceptions that are normatively charged to be locally internalised. Instead, the basis of any type of ‘good’ governance is always first the local or national condition. The issues and prevalences on the ground. Not an arrogated proposition of (often elitist) perspectives that emerge from foreign realities. For state sovereignty to be full, not partial, the decisions must be guided by domestic realities, perceived through domestic intelligence and operationalised by local interpreters. This, as is slowly emerging, would resemble an enlightened perception. Instead of a preponderance of ideas that are en vogue, a rigorous approach must emerge as to how to strategically deal with domestic realities.

 

When South Africa submitted to the standardised set of international norms it may have joined what was at that point the ‘right side of history’, but it failed the strategic task at hand. To develop an indigenous approach to governance, one which would assertively deal with the national condition as consigned by the separate development which preceded it. When the national strategy of Reconstruction and Development was shelved in favour of a growth-oriented approach, South Africa capitulated to the international zeitgeist.

 

Partial sovereignty, which enacts an assumed or foisted upon guiding protocol, cannot see the forest for the trees. It denies fully exploring and developing a system fit for the national condition. As a plant will not mature when planted in alien territory, so a polity cannot mature when it is interpreting itself through the tools and views of another. Governance is an intimately spatial and operational practice. Not only are its ends determined by culture and history, but its pathways must also accord to domestic perceptions. Approaches emerge locally and must give expression to the local reality. Objectives are pursued within a specific (cultural and historic) realm. Successful governance is that which attends to the desires and needs of the people through actions that principally align to the Constitution. Here, both civil servants and citizens alike are the enabling agents tasked to operationalise the work processes and rules of governmentality. In doing so they implement the categories tasked to them. On the other hand, when either the governing administration or the citizens decline their agency. Or when either assumes external norms, governance fails.

 

Governance: lessons from our COVID experience

 

Understanding emerges when things change. If the transition from government to global-inspired governance presents the first turn from which to draw, the return to rule by law during the COVID-19 pandemic offers another. When President Ramaphosa invoked the Disaster Management Act on 15 March 2020, he paused the sovereignty of principles and claimed power in the Executive. While the Constitution provides for such an exception, the contradiction of both government and governance existing at the same time ensured an uneasy synthesis. One that recalls the concept of partial sovereignty. “The form of authority during South Africa’s Disaster presents a synthesis of both claiming and rejecting power. As the exception exists within the norm, an irreconcilability persists which to Schmitt’s (1996) critique of liberalism is captured as impotency. South Africa’s execution of the Act presents a case of both claiming contingent power while resigning to an overriding perception of authority” (Kotze, 2020). The former is expressed in the drafting and implementation of regulations, the latter arises from the external guidance from global institutions and specialists.

 

Ramaphosa strategically seized upon the occasion to invoke the exception to the guiding ‘norm’ by rhetorically giving expression to the current reality and by inspiring the nation to play their part.  During the period under the Disaster Management Act, the Act became the temporary national loadstar. A mechanism “to guide”, “manage”, “facilitate disaster management capacity building, training and education”; and “to provide key performance indicators in respect of the various aspects of disaster management” (Government Gazette, 2003). Like the singular perceptions emergent after the Cold War prompted South Africa (and others) to follow their logics, the novel nature of the pandemic did the same. South Africa (and others) followed a containment protocol that was charted by (select) global authorities. It is not unexpected or even random that the approach that eventually cascaded ever more dramatically under the equally cascading dependence of data, proposed an approach that sought to contain and control. In China, the state where the virus was first detected, the guiding maxim of power and thus the very expression of culture is control. It is not unlikely, had the virus exploded in northern Europe, for example, that the initial and subsequent approaches and consequences would have been different. With a very long history and an independent cultural ethos, a state like China is sovereign. Its sovereignty comes from its own sense and expression of self. Sovereignty is claimed, never bestowed. It is enacted when a state and the people practice the values and principles of the political myths, usually captured in a loadstar such as the Constitution or in the national plans. In a partially sovereign state where national myths or political mores are not accepted or pursued, governance is equally circumscribed. While novel and epidemiological dimensions to the COVID pandemic did shape its response, the global reach of governance norms that were not emergent from societies that implemented them were apparent. Most states followed a similar pathway. One which was not intrinsic to its national mores.

 

COVID governance illuminated the sovereign tension in South Africa. The government deployed the accompanying rule-by-law fiat afforded to it by the Disaster Management Act. The abnormal response to the abnormal situation saw to it that the South African government used a combat narrative and war-like response. It imposed curfews and limitations of movement. It deployed the South African Defence Force. Security measures were not taken against the virus but to protect the state from people not following the laws. Public and even private life was controlled and disciplined. Though government implemented norms from abroad, it did so by giving expression to the current reality and through the mechanisms that were provided for it in the Constitution.

 

The end of the disaster-induced exception opened a new chapter to South African governance. While the experience of implementing the exception may not directly serve its counterpart, it is conceptually illustrative. As the regulations were created to respond to the situation at hand. As government pursued and prosecuted the regulations after providing the citizens with categories and the realms of possibility. And, as the citizens observed the regulations, becoming good followers of leadership. So too governance measures should be conceptualised and internalised. Responding to the everyday conditions threatening the nation.

 

Re-imagining governance in South Africa

 

To conclude this paper, it will focus on several approaches where governance can give greater expression to the Constitution.

 

The Preamble of the Constitution ‘walks before’ the subsequent text. It guides the signification of the Constitution and how it should be read. The first thing the Preamble does is to nullify the previous order of differentiation. The first words state: “We, the people of South Africa”. Instead of simply being a cursory phrase, this is a powerful expression of being. It unites all in South Africa. Not only as equals under law, but in the responsibility of purpose. The second directive is the building of a transformative society. One where the past is recognised (“Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country”) and a just and equal society is collectively built (“Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”) (The Constitution of the Republic of South Africa, 1996). The transformative nature of the Constitution is such that progress is built over time and through the relationship between citizens.


One of the goals set in the Preamble is the improvement in the quality of life of citizens. The current administration has admitted that the state has failed in this regard. It has (rhetorically) committed to become effective, so as to improve the lives of citizens. “To achieve any progress”, said President Ramaphosa in his 2023 State of the Nation address, “we need a capable and effective State. Our greatest weaknesses are in state-owned enterprises and local government” (Ramaphosa, 2023). Mathebula (2023) points to state capability being both human and institutional. According to him, “the Constitution settles the duality of where state capability is located by providing that an organ of the state is any state department, administration, institution, or any other functionary in all spheres of government which exercises power or performs a public function in terms of the Constitution or legislation. In terms of this provision, all public servants are as much an organ of the state as the institutions…This means the most significant focus of any capacity-building interventions should be targeted at the bottom of the pyramid of state personnel” (Mathebula, 2023). Mathebula’s interpretation of the state official as the direct representation of government offers an interesting take on subsidiarity.

 

Usually, subsidiarity, the principle that government should be active where it has maximum effect, is interpreted as the citizen’s engagement with local or municipal government. In South Africa subsidiarity is interpreted from Section 156(4) of the Constitution, that the national and provincial government must assign to the municipality the administration of any matter “that would most effectively be administered locally” (The Constitution of the Republic of South Africa, 1996).  According to De Visser, the “argument is that lower levels of government are closer to the citizen and can therefore make more intelligent decisions on what citizens want” (De Visser, 2010). The governing administration is, therefore, obliged to devolve governance as close as possible to the citizens. Subsidiarity is further “translated into the protection of lower levels of government against undue interference by national government…The argument is that lower levels of government are closer to the citizen and can therefore make more ‘intelligent’ decisions on what the citizens want” (De Visser, 2010). With trust at its core, the principle manifests in the relationship between the citizens and the civil service. 

 

If subsidiarity relates to the structure of power relations, servant leadership can be seen as a human and cultural counterpart. Servant leadership refers to a style of leadership (or governance) that builds faith and authority through positive interactions. It lends to a governance approach whereby the official does not only occupy their public office but instead takes responsibility and accountability as they are rooted in a specific community. As a community member, first, the official does not elevate themselves above the community as is often seen, but rather serves as a servant to the people. A return to and re-imagining of Constitutional governance will also allow for a lucid and new interpretation of the batho pele (people first) principles as first proposed in the 1997 White Paper on Transforming Public Service Delivery. Batho Pele is designed to give expression to the Constitutional ideals. It is described by then President Mandela as “the relentless search for increased efficiency” and the desire to “turn words into action”.

 

It is through turning words into action that perceptions change and the state is experienced as capable. A central problem in governance is the perception of ineptitude, corruption and other ills. Whereas a style of leadership does not directly address faults that require intervention, what it does do is admit where faults are made and seek to return trust and rekindle the relationship between state and citizenry. Servant leadership presents a governance style that contrasts with a self-serving one. By seeking to take responsibility and accountability, the state, through its officials and institutions, addresses the breakdown of trust at its most immediate (and thus persuasive) point, the face-to-face interaction. Servant leadership displays an aspirational style of governance that is found in the desire to recognize and attend to the priorities of others. It is an approach to governance that supports Mathebula’s claim, that the Constitution “should be elevated to be the most crucial document and conceptualization of civic education” (Mathebula, 2023). By returning to the Constitution as the source of guidance, the state and its officials attend to their Constitutional mandate of service delivery.

 

Preferred service delivery, as has previously been mentioned, is not a top-down, but a relational system. Chapter three of the Constitution lays out co-operative governance. Section 41(1) delineates the principles whereby all spheres of government must co-operate with the people. These principles are, therefore, the means and ways whereby government enter into a relationship with the citizenry to transform the society. In such a cooperative democracy, governance takes place by discussion. Deliberation remains a crucial modality of South African democracy. The orations of leaders such as Desmond Tutu played a central role in rejecting the structure of the state under Apartheid and in determining what kind of country South Africa would aspire to become. It was through the extensive inputs from various sectors of society that the Constitutional Assembly process and the final Constitution of 1996 gained legitimacy. To ensure stayed legitimacy, Section 152 requires the participation of citizens and civil society in the governance processes. These should not be mere tick-box exercises but allow for genuine engagement between the government and the people. It is through these exercises that a better understanding develops. So that services are rendered where they are most needed and in an appropriate manner.

 

A cooperative democracy is thus one where the government can work with the people as there is a common understanding and where relations are cultivated through discourse. It is when the communication channels are open, the goals are common and synchronised, and where the state positions itself as an activator or a coordinator. It does so by doing its job. By mobilising society behind its long-term vision through efficient bureaucracy and effective administration. Whereas, the National Development Plan presents a vision, rather than a plan, it does offer a range of approaches towards achieving the Constitutional goals. It encourages South Africans to enact their belonging. To become active stakeholders in the national pursuit. To see their futures linked to the future of the state. To embrace its opportunities and to invest in their different forms of capital; the success of the state is their success. The dividends of such an approach are manifold.

 

Such an entrepreneurial approach would lend to improved governance. The entrepreneurial state is not a foreign concept in South Africa. When South Africa transitioned to democracy in the early 1990s it undertook a largely entrepreneurial approach. Its leaders and citizens cooperatively proposed and then discussed the various means, ways and ends towards democracy. Whereas the novelty of the situation and the variety of actors ensured entrepreneurialism, the same spirit and approach can again be utilized in a goal-oriented pursuit of positive change. As before, dialogue, cooperation and compromise between different sectors of society is imperative. In toto, a new consensus must be brought about through the active engagement of all citizens.

 

The entrepreneurial vision of the early 1990s advanced the Freedom Charter’s call: “the people shall govern”. For governance to be legitimate, the people expressing their will must be central. Through programmes (such as Reconstruction and Development) and visions (such as Batho Pele), the state has taken a people-centred approach. “While noble and just in their orientation, these programmes have centred power inwards into the administration. It has led to delivery dependency” (Kotze, 2022). The phrase, “the people shall govern”, recalls Abraham Lincoln’s famous line that democracy entails “government of the people, for the people, by the people”. The citizens must claim the state as their own. In his piece: “The problem in South Africa is not democracy but a lack of democrats”, Bailie (2022) draws our attention to the need to cultivate strong followership. In the absence of capable and inspirational government, the loadstar to the people, the Constitution must inspire society to be capable. Courageous followership is needed in the form of “the courage to assume responsibility, the courage to serve, the courage to challenge, the courage to participate in transformation and the courage to take moral action” (Bailie, 2022). Each of these dimensions directs citizens to exercise their responsibility as co-creators of a capable state. Through public reasoning, through engaging the public service and through putting the Constitution into action, a new consensus compounds and the nation is built.

 

References

 

Bailie, Craig. 2022. “The problem in South Africa is not democracy but a lack of democrats”. (Online) Available at Mail & Guardian, 25 November. https://mg.co.za/thought-leader/opinion/2022-11-25-the-problem-in-south-africa-is-not-democracy-but-a-lack-of-democrats/

 

De Visser, Jaap. 2010. “Subsidiarity in the Constitution”. Conference Workshop Cultural Initiative: European Programme for Reconstruction and Development.

 

Foucault, Michel. 1982. “The Subject and Power”. Critical Inquiry 8(4): 777-795.

 

Government Gazette, 2003. Disaster Management Act, Act 57 of 2002, No. 24252, 15 January.

 

Huff, Richard. n.d. “Governmentality”, (Online) Available at Britanica, https://www.britannica.com/topic/governmentality).

 

Kotzé, Klaus. 2020. “Responding to COVID-19: Emergency Laws and the Return to Government in South Africa”. Javnost: The Public.

 

Kotzé, Klaus. 2022. “A people-driven state is required for national renewal”. (Online) Available at Mail & Guardian, 27 October. https://mg.co.za/thought-leader/opinion/2022-10-27-a-people-driven-state-is-required-for-national-renewal/

 

Mathebula, Lucky. 2023. “(Re)building a capable state is possible. Here’s what it will require”. Sunday Times, 8 October.

 

Ramaphosa, Cyril. 2012. “Conversation on the Constitution”. Nelson Mandela Foundation.

 

Ramaphosa, Cyril. 2023. “President Cyril Ramaphosa: 2023 State of the Nation Address”. (Online) Available at South African Government, 9 February. https://www.gov.za/speeches/president-cyril-ramaphosa-2023-state-nation-address-9-feb-2023-0000

 

Terreblanche, Sampie. 2018. “The Co-Optation of the African National Congress: South Africa’s Original ‘State Capture’”. (Online) Available at Pambazuka News, 25 January. https://www.pambazuka.org/node/98467

 

The World Bank. 1994. Governance: The World Bank’s Experience. Washington, DC: The World Bank.

 

The Constitution of the Republic of South Africa, 1996.

 

Van Norman Law. 2017. “Rule of Law vs Rule by Law”. Online at Van Norman Law. https://vannormanlaw.com/rule-law-vs-rule-law/#:~:text=The%20Rule%20of%20Law%20is,equal%20under%20the%20law%20itself


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This report has been published by the Inclusive Society Institute

The Inclusive Society Institute (ISI) is an autonomous and independent institution that functions independently from any other entity. It is founded for the purpose of supporting and further deepening multi-party democracy. The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values. In South Africa, ISI’s ideological positioning is aligned with that of the current ruling party and others in broader society with similar ideals.


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